IMPORTANT POINT
Breach of contract – Award of damages—Work schedule is required for progressive payment and target and it is sine qua non for execution of contracted work.

JUDGMENT

Sujit Narayan Prasad, Acting C.J.—The instant appeal under section 13 of the Commercial Courts, Act is directed against the order/judgment dated 08.05.2023 passed by the District Judge-III-cum-Presiding Officer, Commercial Court No. III, Dhanbad, in Original Suit No. 09 of 2019, whereby and whereunder, the suit was decreed in favour of plaintiff/respondent with following directions:

“The suit is decreed without cost, both the parties shall bear their own cost. It is declared that the contract awarded to the plaintiff vide work order No. BCCL/IX/GM/PLNG/AT-LIBRA/H-HEMM/NC/WO/12/673, dated 8.2.2012 was terminated midway by the defendants illegally and unjustifiably; and

It is further declared that the notice of proposed action against the plaintiff communicated vide letter bearing ref. no. BCCL/BA-IX/KOCP/64, dated 30.03.2018 signed on 02.04.2018 is void, illegal and invalid.

The defendants are directed to pay to the plaintiffs following amounts :-

(a) A sum of Rs. Rs.4,20,02,320/- as refund of bank guarantee and retention money combined; and

(b) A sum of Rs.1,80,40,014/- as reimbursement of difference in HPC 08th May 2023 Page No.-93 of 94 In the court of District Judge-cum-Presiding Officer Commercial Court No.-III, Dhanbad Original Suit No.-09/2019 CNR No. - JHDH01-002164-2019 (U/s 26 C.P.C. r/w Sec. 6 & 12 Commercial Court Act) payment; and

(c) A sum of Rs.2,63,19,879/- illegally withheld money ; and

(d) A sum Rs. 2,43,07,069/- reimbursement of service tax; and

(e) A sum of Rs. Rs.4,98,45,047/- on account of correct Specific Gravity/Stripping Ratio; and

(f) A sum of Rs.1,93,83,855/- for work done in February 2018 and further sum of Rs. 1,34,23,451/- for work done in March, 2018; and

(g) A sum of Rs.13,41,16,526/- as opportunity cost ; and

(h) A sum of Rs.13,46,06,556.43/- as cost incurred in EMI etc.

(i) Interest on the amount as above on total monetary claim @ 10.5% p.a. pendent lite and further till date of realization of the said amount.”

2. The facts leading to filing the aforesaid original suit being Original Suit No. 09 of 2019 which requires to be enumerated herein, reads as under:

The plaintiff (M/s. AT-Libra BPL (JV), respondent herein) has brought the suit being Original Suit No. 09 of 2019 for declaration, permanent injunction and recovery of money initially valued at Rs.19,33,71,635 and later by amendment it was enhanced to Rs.46,86,08,851/- u/s 26 of Civil Procedure Code with Sections 6 & 12 of Commercial Court Act 2015.

The plaintiff is a joint venture partnership firm and engaged in the business of mining and coal /Over Burden and transport excavation in various parts of the country.

Notice Inviting Tender (NIT) being Tender No. BCCL/ GM (CMC)/F-HEMM-OS/2010/3844 was issued by the defendant no.3 (appellant herein) for hiring of HEMM and for removal of OB, extraction and transportation of coal from IV (TOP), IV (BOT), III (TOP) and III (BOT) seems of Golukdih NC Project (Northern Sector) of GOCP/KOCP of Bastacolla for and estimated cost of Rs. 282 crores.

In pursuance of said NIT the plaintiff/respondent had participated in the tender process and was declared successful bidder. On 07.11.2011, a Letter of Acceptance (LOA) was issued by the defendant no.1 for removal of 267 lakh cum OB, re-handling of 2.00 lakh cum loose OB and for extraction and transportation of 112.85 MT of coal from IV(Top), IV (Bot), III(Top) and III (Bot) seams of Golukdih NC project (Northern sector) of GOCP/KOCP of Bastacolla area with financial involvement of Rs. 252,01,39,290/- (Rs. Two Hundred Fifty-Two Crore One Lakh Thirty-Nine Thousand Two Hundred Ninety) only inclusive of all taxes and levies but exclusive of service tax at the diesel base price of Rs. 39.61 per liter.

Pursuant to such issuance of LOA on 07.11.2011, the plaintiff had duly furnished performance security/security Deposit of Rs.2,10,01,161/- from 28.11.2011 till 29.9.2018 which was a per-condition as mentioned in the LOA and on 08.0